Page:Harris v. Brooks, 225 Ark. 436 (1955).pdf/13

448 We think the conclusion we have reached is not only logical but practical. Although appellees had quit using water from the lake when this case was tried yet they testified that they intended to use water therefrom in 1955. We might assume that they would want to also use water in subsequent years, so it would seem to be to the best interest of all parties concerned to have a definite level fixed at which pumping for irrigation must cease in order to avoid useless litigation.

Appellees make the point that the Chancellor should be sustained because they have acquired a prescriptive right to the unlimited use of the water in Horseshoe Lake, and, to the same effect, that appellants are estopped from asserting any rights to the contrary. We cannot sustain this contention. Although appellees, according to the record, have used this water for irrigation purposes on several occasions in previous years, dating back for more than seven years, yet it appears that appellants had not been disturbed in the exercise of their riparian rights previous to 1954. Prior to that year appellees had merely been exercising their lawful rights as riparian owners and their exercise of those rights was in no way adverse to the rights of any one. (56 Am. Jur., p. 730, § 343) inIn [sic] the City of Conway case, supra, where the same contention was made that appellees here make the contention was denied, the court saying: "We are unable to find any act or acts on the part of Conway of an adverse claim or nature, or such as would put appellants on notice of any adverse claim." The court then followed with citations which are applicable here.

Reversed with direction to the trial court to enter a decree in conformity with this opinion.

Justice MF concurs.